BEVAN & BEVAN & ANOR - [2012] FMCAfam 370

FEDERAL MAGISTRATES COURT OF AUSTRALIA

BEVAN & BEVAN & ANOR

[2012] FMCAfam 370

FAMILY LAW – Property – Husband deceased – financial resources and needs of wife.

Family Law Act 1975, ss.75(2), 79(8)(b) and 79(4)

Hickey & Hickey & Attorney for Commonwealth of Australia (Intervenor) (2003) FLC 93-143
Menzies v Evans (1988) FLC 91-969
Tasmanian Trustees Ltd v Gleeson (1990) FLC 92-156
Re Parrott v Public Trustee of NSW (1994) FLC 92-473
Stanford & Stanford [2012] FamCAFC 1
Konitza & Konitza (No. 2) [2009] FamCAFC 213

Applicant:

MS BEVAN

First Respondent:

MR P BEVAN

Second Respondent:

MR A BEVAN (EXECUTOR AND TRUSTEE OF THE ESTATE OF THE DECEASED HUSBAND)

File Number:

ADC 589 of 2009

Judgment of:

Cole FM

Hearing dates:

9 & 10 February 2012, 15 and 20 March 2012

Date of Last Submission:

28 March 2012

Delivered at:

Adelaide

Delivered on:

30 April 2012

REPRESENTATION

Counsel for the Applicant:

Mr R Richards

Solicitors for the Applicant:

Cardone & Associates

Counsel for the Respondents:

Di Morosini

Solicitors for the Respondents:

Di Morosini & Co

ORDERS

That the net assets of the parties be divided as follows:
(a)as to 75% thereof to the Applicant wife;
(b)as to 25% thereof to the Respondent.
That in order to give effect to paragraph 1 hereof:
(a)as to the Bevan Superannuation Fund:
(i)the parties do all such things as are necessary to cause [J] Pty Ltd (“the Company”), the trustee of the Bevan Superannuation Fund (“the fund”), to require that the Company determine by resolution in general meeting that the number of Directors of the Company may be less than two, to the intent that the wife will thereafter be the sole Director of the Company;
(ii)to cause the Company as the trustee of the fund to determine that the benefits payable upon the death of the husband shall be payable by the trustee as to the whole of the Member’s Benefit Account Balance to the wife in her capacity as a “death benefits dependent”;
(iii)thereafter, the Respondent being the deceased husband’s Legal Personal Representative, will transfer to the wife or her nominee the shareholding held by or on behalf of the Estate of the deceased husband.
(b)On receipt of the money referred to in paragraph (2)(a)(ii) of these orders, the wife pay to the respondent the sum of $46,892;
(c)Subject to these orders, the wife in her capacity as the sole Director of [J] Pty Ltd do continue to offer for sale the property owned by the Company at Property R, South Australia (Certificate of Title Register Book Volume [omitted]) (“the property”) and to keep the respondent advised of:
(i)the terms and conditions on which the property is being offered for sale from time to time;
(ii)any communication between the authorised selling agent and the wife as to any progress with the sale as may occur from time to time and including any recommendation or advice from the authorised selling agent as to any change in the terms and conditions…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading BEVAN & BEVAN & ANOR

Details

AGLC: BEVAN & BEVAN & ANOR [2012] FMCAfam 370
Case: [2012] FMCAfam 370
Decision Date: 30 April 2012

CaseChat Overview and Summary

In the matter of Bevan & Bevan, the Federal Circuit and Family Court of Australia was presented with a dispute concerning the division of matrimonial assets. The Applicant, the wife, sought to have the assets of the marriage equitably divided between herself and the Respondent, the husband, who had passed away. The central issues before the court involved the distribution of the couple's superannuation fund, the ownership of a life insurance policy, and the sale and proceeds from a property owned by a company in which the husband held shares. The court had to determine the rightful division of these assets in accordance with the principles of fairness and the relevant legislative frameworks.

The court examined the specific legal issues surrounding the superannuation fund, which included determining how to adjust the number of directors of the company that held the fund to allow the wife sole control, as well as the allocation of death benefits. Additionally, the court needed to decide on the transfer of the husband's shares in the company and the corresponding life insurance policy to the wife. Furthermore, the court had to establish the terms under which the property owned by the company would be sold and the division of its proceeds, as well as the division of outgoings until the sale. The court also needed to consider the wife's relinquishment of any further entitlements to the estate of the deceased husband, apart from those explicitly mentioned in the orders.

In its reasoning, the court meticulously outlined the division of the net assets, granting 75% to the wife and 25% to the husband’s legal personal representative. It detailed the steps necessary for the transfer of control over the superannuation fund and life insurance policy to the wife. The court also established the terms for the sale of the property and the division of its proceeds, including the payment of outgoings. The court made clear that the wife would relinquish any further claims to the estate's funds, except for the assets already outlined. The court provided liberty for the parties to seek further orders if necessary.

The final orders of the court mandated the specific division of the assets as outlined, required the wife to pay a sum to the respondent upon receipt of certain funds, and detailed the terms of the property sale and disbursement of its proceeds. The court also directed the transfer of beneficial ownership of a life insurance policy to the wife and clarified the ownership of personal effects and other items. The court reserved the right for the parties to apply for further consequential orders.

Orders

Orders of the court

That the net assets of the parties be divided as follows:

(a) as to 75% thereof to the Applicant wife;

(b) as to 25% thereof to the Respondent.

That in order to give effect to paragraph 1 hereof:

(a) as to the Bevan Superannuation Fund:

(i) the parties do all such things as are necessary to cause [J] Pty Ltd (“the Company”), the trustee of the Bevan Superannuation Fund (“the fund”), to require that the Company determine by resolution in general meeting that the number of Directors of the Company may be less than two, to the intent that the wife will thereafter be the sole Director of the Company;

(ii) to cause the Company as the trustee of the fund to determine that the benefits payable upon the death of the husband shall be payable by the trustee as to the whole of the Member’s Benefit Account Balance to the wife in her capacity as a “death benefits dependent”;

(iii) thereafter, the Respondent being the deceased husband’s Legal Personal Representative, will transfer to the wife or her nominee the shareholding held by or on behalf of the Estate of the deceased husband.

(b) On receipt of the money referred to in paragraph (2)(a)(ii) of these orders, the wife pay to the respondent the sum of $46,892;

(c) Subject to these orders, the wife in her capacity as the sole Director of [J] Pty Ltd do continue to offer for sale the property owned by the Company at Property R, South Australia (Certificate of Title Register Book Volume [omitted]) (“the property”) and to keep the respondent advised of:

(i) the terms and conditions on which the property is being offered for sale from time to time;

(ii) any communication between the authorised selling agent and the wife as to any progress with the sale as may occur from time to time and including any recommendation or advice from the authorised selling agent as to any change in the terms and conditions upon which the property is offered for sale;

Upon settlement of the sale of the property the net proceeds of sale (after discharging the mortgage secured against the property in favour of Commonwealth Bank of Australia, payment of all sale and settlement costs and after provision for any Capital Gains Tax arising from the sale) be disbursed as follows:

1. in payment of 75% to the wife;

2. in payment of 25% to the respondent.

Pending the sale of the property the parties shall pay the outgoings on the property including but not limited to rates, taxes, and reasonable maintenance expenses, with the outgoings to be paid as follows:

(a) from the net proceeds of any income received from the [business] on the property;

(b) in the event the property is rented, from the net proceeds of the rent received; and

The respondent will do all things necessary to transfer to the wife the beneficial ownership of the [C] Life Policy held by the deceased Estate of the husband on the life of the wife.

Save as set out in these orders, the wife relinquish any entitlement she may have to any funds the Estate may have available for distribution following the division of the matrimonial assets pursuant to these orders.

Except as otherwise provided in these orders, the respondent and the wife are each entitled to be the sole legal and beneficial owners of all items of property including money, motor vehicles, insurances, equities, superannuation entitlements and personal effects currently in the possession or control of each of them respectively.

There be liberty to the parties to apply as to consequential orders including but not limited to the terms and conditions of the sale of the property.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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